A workplace complaint can cost an employer long after the investigation is completed

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeWorkA workplace complaint can cost an employer long after the investigation is completedHoward Levitt and Annie Yu: Hiring an external investigator does not transfer responsibility for the matter to the investigatorLast updated 5 minutes ago A workplace investigation does not end the employer's responsibility, write Howard Levitt and Annie Yu. Photo by sabthai/stock.adobe.comThere is a persistent assumption in employment law that, once a workplace complaint has been investigated, the matter is over.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountAn employee complains. The employer hires an outside investigator. The investigator prepares a report. Discipline is imposed, if necessary, and everyone moves on.Except that everyone may not move on.A recent Ontario Labour Relations Board decision, Braganza v. Randstad Canada, is an expensive reminder that the consequences and costs of a workplace complaint can continue long after the investigation has formally ended.This advertisement has not loaded yet, but your article continues below.The case illustrates a point employers sometimes overlook: terminating an employee who has made a protected workplace complaint can constitute reprisal if the employer cannot establish that the complaint played no role whatsoever in the decision.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againThe complaint need not have played a substantial role. The Board held that, even where an employer has legitimate reasons for termination, if the protected activity was a factor in the decision, “no matter how small,” it violates Section 50 of the Occupational Health and Safety Act (OHSA).The price for Randstad was significant.The applicant in the case was an operations manager at Randstad. In June 2022, she made a workplace harassment complaint involving several colleagues.Randstad retained an experienced external investigator who conducted an investigation and prepared a detailed report.The investigation became part of the problem.The investigator initially identified allegations by the applicant involving two employees. But after discussions with Randstad, they proceeded against only one. The applicant was not told that the second employee had been removed. Instead, she received a one-page summary stating that disciplinary action was taken.This advertisement has not loaded yet, but your article continues below.The applicant later raised concerns that she might face retaliation and requested a transfer. She was told that no equivalent positions were available.After returning from medical leave, she experienced significant changes to her employment. Former peers were promoted above her. She lost her previous clients and was left with a less productive portfolio. On March 31, 2023, she was dismissed.The stated reason was organizational restructuring. During the litigation, Randstad also relied on performance concerns.There is nothing inherently improper about either explanation. Employers are entitled to restructure, and they are entitled to terminate employees whose performance is genuinely inadequate. Filing a workplace complaint does not create permanent job security.Section 50 of the OHSA changes the evidentiary equation. Once an employee has made a protected complaint, the employer bears the burden of establishing that the adverse employment action was not retaliatory.The Board accepted that Randstad had undergone restructuring. It also acknowledged that the applicant may have struggled with aspects of her job.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.Those findings did not resolve the central issue: whether her complaint played any role in the termination. Randstad could not establish that it did not.The employer had little contemporaneous evidence of its performance concerns. It did not produce the applicant’s personnel file, and there was no adequate record showing how employees had been compared when termination decisions were made. The Board found the lack of documentation “fatal” to Randstad’s position.Then there were the issues with the investigation itself. Randstad had declined to follow the investigator’s recommendation to include the second employee in its probe and did not disclose that decision to the applicant. The Board regarded this as undermining the integrity of the investigation.That became particularly significant because Randstad later relied on employees implicated in the complaint to justify terminating the applicant. The manager who made the termination decision also had limited direct knowledge of the applicant’s performance and had not read the investigation report.This advertisement has not loaded yet, but your article continues below.The Board found that Randstad failed to establish that the termination was free of retaliation and awarded the applicant 22 months of lost income in the amount of $194,333.26, plus $1,500 for injury to dignity and mental distress — bringing the total to $195,833.26.There are four lessons for employers.First, an investigation does not end the employer’s responsibility.Hiring an external investigator does not transfer responsibility for the matter to the investigator. The employer remains responsible for defining the investigation’s scope, responding appropriately to its findings and ensuring that later employment decisions are not influenced by the complaint. We have often written about why hiring an external investigator is usually a mistake.Second, employers should address performance concerns when they arise, not when litigation appears imminent.If an employee is genuinely struggling, the employer should be able to demonstrate that through performance reviews, coaching, warnings, objective metrics and documented discussions. Explanations assembled after a retaliation complaint will rarely be as persuasive.This advertisement has not loaded yet, but your article continues below.Third, restructuring requires an explanation for the individual selection.Saying “we restructured” is insufficient when the employee selected for termination recently made a protected complaint.An employer should be able to explain which positions were eliminated, which employees were considered, what criteria were applied and why the complainant was selected. The closer the termination is to the complaint, the more important that record becomes.Fourth, employers should generally avoid using outside investigators.In addition to the many problems arising from their use, as discussed in previous columns, there is too great a risk of divergence between the company and the outside party, and an employee’s counsel can exploit that.The Braganza decision does not stand for the proposition that employers cannot terminate employees who make workplace complaints. Nor does it make complainants immune from legitimate performance management or restructuring. It is fundamentally a decision about proof.Once an employee has exercised a protected statutory right, any subsequent adverse employment decision involving that employee will receive heightened scrutiny. Employers do not need to avoid legitimate decisions, but they must make them carefully, objectively and with a clear record of why they were made.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.The easiest employment decision to defend is one for which the employer can show what it knew, what it considered and why it acted, using evidence created before the lawsuit.Randstad learned the opposite lesson. Its investigation did not end the problem. The way it managed what followed turned a workplace complaint into a retaliation finding and, ultimately, a $195,833.26 bill.Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in all provinces and is the author of six books, including the Law of Dismissal in Canada. Annie Yu is an associate at Levitt LLP.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.